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2016 | OriginalPaper | Buchkapitel

9. Human Rights in International Investment Disputes

Global Litigation as International Law Re-Unifier

verfasst von : Leïla Choukroune

Erschienen in: Judging the State in International Trade and Investment Law

Verlag: Springer Singapore

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Abstract

Are human rights taken into consideration in international investment law and dispute settlement? The controversy surrounding this now tedious debate has largely been fuelled by political and economic interests rather than convincing legal arguments. Interestingly indeed, the apparent contradiction between norms could be easily resolved if a political and economic will to read the law from a holistic perspective making use of its many flexibilities could eventually manifest itself. Twenty years after the creation of the World Trade Organization (WTO) and the massive adoption of investment treaties promoting and protecting FDI, the complexities of today’s international economic law scene as well as the recent defiance of developing, but also developed countries, towards trade and investment instruments and dispute settlement in particular calls for a paradigm shift, that of the reconsideration of the State’s sovereign attributes and duty to regulate in the favour of the public interest and the protection of human rights. In relation to these changes, the rapid development of global mega investment cases (Bhopal, Chevron-Texaco v. Ecuador, Philipp Morris), which are litigated, often in parallel proceedings, at various jurisdictional levels and on the basis of a complex network of domestic and foreign norms dramatically modifies the way investment disputes are settled. In going far beyond the usually studied international investment arbitration cases, these disputes pose a global litigation challenge while responding, at the same time, to the question of international law reunification. In this context, this chapter proposes to revisit the now traditional international economic law approach of human rights in international investment arbitration in underlying the instrumental and artificial character of the presupposed normative contradiction (I) to then go beyond international investment dispute settlement (ISDS) and show why an alternative (human) rights-based perspective is needed to not only provide victims with essential remedies, but also participate in international law reunification (II).

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Vorheriges Kapitel Role of Indian Judiciary in the Realm of International Trade and Investment Law

Nächstes Kapitel Sovereignty Modern

In this regard, please see one of the first comprehensive publication on the topic, released after a number of investment human rights-related disputes took place: Pierre-Marie Dupuy, Francesco Francioni & Ernst-Ulrich Petersmann (eds) Human Rights in International Investment Law and Arbitration Oxford University Press (OUP, Oxford, 2009). For an updated analysis on the same essential issues, see Vivian Kube & Ernst-Ulrich Petersmann, Human Rights Law in International Investment Arbitration, EUI, Department of Law, Working Paper, 2016/02.

Ten years ago, Amnesty International already produced a landmark report on issues debated today, Human Rights Trade and Investment Matter, see https://www.amnestyusa.org/sites/default/files/pdfs/hrtradeinvestmentmatters.pdf.

On the relation between international investment law and international law and public law, see Eric de Bradandere, Investment Treaty Arbitration as Public International Law Cambridge, Cambridge University Press (CUP) (CUP, 2016); Stephen Schill (ed) International Investment Law and Comparative Public Law Oxford, Oxford University Press (OUP) (OUP, 2010); Andreas Kulick, Global Public Interest in International Investment Law Cambridge, Cambridge University Press (CUP) (CUP, 2014).

On a comparison with the absence of political will to take human rights consideration into account in the Doha round of trade negotiation, see Ernst-Ulrich Petersmann, International Economic Law in the 21st Century: Constitutional Pluralism and Multilevel Governance of Interdependent Public Goods (Hart Publishing, Sydney, 2012).

See UNCTAD World Investment Report 2015 available at: http://unctad.org/en/pages/PublicationWebflyer.aspx?publicationid=1245.

On fragmentation, see International Law Commission, A/CN.4/L.682, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 2006. See also Margaret Young (ed) Regime Interaction in International Law: Facing Fragmentation Cambridge, Cambridge University Press (CUP) (CUP, 2012); Ole Kristian Fauchald, Andreas Nollkaemper (eds) The Practice of International and National Courts and the (De-)Fragmentation of International Law (Hart Publishing, 2014); on the methodological challenge in international economic law, see Ernst Ulrich Petersmann, Methodological Pluralism and Its Critics in International Economic Law Research, 15(4) Journal of International Economic Law (2013) 921–970; Methodology Problems in International Economic Law and Adjudication, European University Institute, Working Papers, 2016/12.

Ibid, [413]. The article 31 of the VCLT reads as follows:

GENERAL RULE OF INTERPRETATION

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a)

Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

(b)

Any instrument, which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

There shall be taken into account, together with the context:

(a)

Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b)

Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c)

Any relevant rules of international law applicable in the relations between the parties.

See Leïla Choukroune, China’s Accession to the WTO and Legal Reform: Towards the Rule of Law via Internationalization without Democracy?, in, Mireille Delmas Marty & Pierre Etienne Will (eds) China, Democracy and Law: Historical and Contemporary Approach (Brill, December 2011) 649–703.

For a recent analysis of human rights provisions in international investment law and litigation, see, for example, Pierre-Marie Dupuy, Francesco Francioni & Ernst-Ulrich Petersmann (eds) Human Rights in International Investment Law and Arbitration Oxford, Oxford University Press (OUP) (OUP, 2009); Eric de Brabandere, Human Rights Considerations in International Investment Arbitration, in, M Fitzmaurice & P Merkouris (eds) The Interpretation and Application of the European Convention of Human Rights: Legal and Practical Implications (Leiden/Boston, Martinus Nijhoff Publishers, 2012); Vivian Kube & Ernst-Ulrich Petersmann, Human Rights Law in International Investment Arbitration, EUI, Department of Law, Working Paper, 2016/02.

To this we could add an invocation by arbitrators, which however reveals rather rare.

On international economic law as an exception justification mechanism, see, Leïla Choukroune, Disasters and International Trade and Investment Law – the State’s Regulatory Autonomy between Risk Protection and Exception Justification, in, S Breau & KLH Samuel (eds) Research Handbook on Disasters and International Law (Edward Elgar, Cheltenham, UK; Northampton, MA, USA September 2016).

The Argentine crisis and a number of water-related disputes discussed below are particularly revealing of these attempts. On the reference to customary international law and general principles of law in investment arbitration, see, Alec Stone Sweet & Giacinto Della Cananea, Proportionality, General Principles of Law and Investor States Arbitration: A Response to Jose Alvarez, Yale Law School, Faculty Scholarship Series, paper 4994, 2014 <http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5981&context=fss_papers>.

See, Chevron Corporation (USA) and Texaco Petroleum Corporation (USA) v Ecuador, UNCITRAL, Partial Awards on the Merits, 30 March 2010 [166].

See, Methanex Corporation v US, UNCITRAL, Decision of the Tribunal on Petitions from Third Persons to intervene as “Amici Curiae”, 15 January 2001 [49].

See, new CETA text, 534 available at: http://trade.ec.europa.eu/doclib/docs/2014/september/tradoc_152806.pdf.

See, Azurix v Argentine Republic, ICSID Case No ARB/01/12, Award, 14 July 2006.

On the artificial character of the contradiction, see, Pierre-Marie Dupuy & Jorge E Viñuales, Human Rights and Investment Disciplines: Integration in Progress, in, M Bungenberg, Jorn Griebel, Stephan Hobe, August Reinish (eds) International Investment Law (Gebunden, Nomos, 2015)1788–1816.

Committee on Economic, Social and Cultural Rights General Comment 15 (E/C.12/2002/11) available at: http://www.unhcr.org/49d095742.html.

See, Eyal Benvenisti, Water, Right to, International Protection, in, Rüdiger Wolfrum (ed) Max Planck Encyclopedia of Public International Law (OUP, 2010); Laurence Boisson de Chazournes, Fresh Water in International Law (Humanization of the Law Applicable to Fresh Water), op.cit., 147–175.

See, the WHO/UNICEF Joint Monitoring Programme (JMP) for Water Supply latest data available at: http://www.wssinfo.org.

For a concise approach, see, generally the UN Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation Handbook available at: http://www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/Handbook.aspx.

See, the Conference Report available at: http://www.ircwash.org/sites/default/files/71UN77-161.6.pdf.

See, http://www.un.org/documents/ga/res/35/a35r18e.pdf. 2005–2015 was also proclaimed as a new water decade.

See, E/C.12/2002/11 20 January 2003, Committee on Economic, Social and Cultural Rights, General Comment No 15 (2002), The right to water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights) available at: http://www2.ohchr.org/english/issues/water/docs/CESCR_GC_15.pdf.

See, the studies produced by Office of the United Nations High Commissioner for Human Rights for an easy access to constitutional and legislative developments, available at: http://www2.ohchr.org/english/issues/water/contributions.htm.

See, http://www.un.org/waterforlifedecade/human_right_to_water.shtml.

See, GA A/RES/68/157 and Human Rights Council Resolution A/HRC/RES/24/18.

The right to sanitation follows the same perspective as it entitles everyone without discrimination to physical and affordable access to sanitation, in all spheres of life, which is safe, hygienic, secure, socially and culturally acceptable, which provides for privacy and ensures dignity.

See, General Comment No 15, op cit [40].

On the regulation of water services, see, Leïla Choukroune, Water and Sanitation Services in International Trade and Investment Law: For a Holistic Human Rights Based Approach, in, Julien Chaisse (ed) The Regulation of the Global Water Services Market Cambridge University Press (CUP), Cambridge (CUP, London, forthcoming November 2016) 420.

See, the July 2015 report available at: http://www.righttowater.info/wp-content/uploads/2015_SR_WatSan_TypesOfServices_GA_70.pdf.

See, for instance, Pierre-Marie Dupuy, Unification Rather Than Fragmentation of International Law? The Case of International Investment Law and Human Rights Law; Pierre Thielbörger, The Human Right to Water versus Investor Rights: Double-Dilemma or Pseudo-Conflict?, in, Pierre-Marie Dupuy, Francesco Francioni & Ernst-Ulrich Petersmann (eds) Human Rights in International Investment Law and Arbitration Oxford University Press (OUP), Oxford (OUP, 2009) 45–62, 487–510; Michael Rand, Water-Related International Investment Disputes: A Fresh Look at Bayview Irrigation District v United Mexican States, 29(5) Journal of International Arbitration (2012) 605–622; Tamar Meshel, Human Rights in Investor-State Arbitration: The Human Right to Water and Beyond, Journal of International Dispute Settlement (2015) 1–31.

The investment cases listed below are of particular significance and so have been quite extensively commented: Compania de Aguas del Aconquija SA and Vivendi Universal v Argentine Republic, ICSID Case No ARB/97/3, Award (20 August 2007); Socieded General de Aguas de Barcelona S, Vivendi Universal SA v Argentine Republic, ICSID Case No ARB/03/19, Order in Response to a Petition for Transparency and Participation as Amicus Curiae IIC 229 (2005); SAUR International v Argentine Republic, ICSID Case No ARB/04/4; Azurix Corp v Argentine Republic, ICSID Case No ARB/01/12, Award (14 July 2006); Biwater Gauff (Tanzania) Ltd v United Republic of Tanzania, ICSID Case No ARB/05/22, Award (24 July 2008); Suez, Sociedad General de Aguas de Barcelona SA and Interagua Servicios Integrales de Agua SA v Argentine Republic, ICSID Case No ARB/03/17, Decision on Liability (30 July 2010); Suez, Sociedad General de Aguas de Barcelona SA and Vivendi Universal SA v Argentine Republic ICSID Case No ARB/03/19, Decision on Liability (30 July 2010); PacRim v El Salvador, ICSID Case No ARB/09/12, Decision on the Respondent’s Jurisdictional Objections, IIC 543 (2012).

See, the useful UNCTAD data base available at: http://investmentpolicyhub.unctad.org/ISDS/CountryCases/8?partyRole=2.

See, Compania de Aguas del Aconquija SA and Vivendi Universal SA v Argentine Republic, ICSID Case No ARB/ 97/3, Award (20 August 2007).

Op cit, Vivendi 2007 Award, [2.2.1, 2.2.2, 3.3.3].

Op cit, Vivendi 2007 Award, [11.1].

See, Compania de Aguas del Aconquija SA and Vivendi Universal SA v Argentine Republic, ICSID Case No ARB/ 97/3, Decision on the Argentine Republic’s Request for Annulment of the Award rendered on 20 August 2007 (10 August 2010) [57].

See, Biwater Gauff (Tanzania) Ltd v United Republic of Tanzania, ICSID Case No ARB/05/22, Award (24 July 2008) [436].

See, Petition for Amicus Curiae in Case No ARB/05/22 (Biwater Gauff (Tanzania) Ltd v United Republic of Tanzania) before the ICSID, 27 November 2006.

Ibid, 7.

See, Biwater Gauff (Tanzania) Ltd v United Republic of Tanzania, ICSID Case No ARB/05/22, Award (24 July 2008) [387].

See, Suez, Sociedad General de Aguas de Barcelona SA and Vivendi Universal SA v Argentine Republic, ICSID Case No ARB/03/19, Decision on Liability (30 July 2010) [252]. See also the 2015 Award.

Ibid, [260].

See, SAUR International SA v Argentine Republic, Affaire CIRDI No ARB/04/4, Décision sur la compétence et la responsabilité (Decision on competence and liability), 6 juin 2012 [328–332]. It is also interesting to observe that the award is almost entirely dedicated to the calculation of the compensation on the basis of an extremely detailed economic (and legal) analysis.

Ibid, [324–327].

Ibid, [330]. This quote could be translated as follows: “human rights in general, and the right to water in particular, constitute one of the various sources that the Tribunal will have to take into consideration to settle the dispute as these rights are elevated in the Argentine legal system at the level of constitutional norms and are, in addition, part of the general principles of international law”.

See, Ibid, [331].

The Indian Supreme Court opened its 1989 order for out-of-court settlement as follows. See, http://www.legalserviceindia.com/issues/topic1401-union-carbide-corporation-vs-union-of-india-transfer-case.html.

For facts and figures and a large number of Bhopal related press and legal documents, see generally, the Business and Human Resource Centre database and case summary available at: http://business-humanrights.org/en/union-carbidedow-lawsuit-re-bhopal. It is also interesting to take a look at the narration and timeline provided by Union Carbide available at: http://www.bhopal.com/Chronology; the company logically insists on this prompt reaction and the many charitable initiatives it funded post-catastrophe and the fact that in February 1989, within 10 days of the order, UCC and UCIL make full payment of the $470 million to the Government of India.

See, Amnesty’s reports and recent posts available at: https://www.amnesty.org.in/action/detail/union-carbide-and-dow-must-respect-the-indian-justice-system.

See, Uprendra Baxi, Human Rights Responsibility of Multinational Corporations, Political Ecology of Injustice: Learning from Bhopal Thirty plus?, 1 Business and Human Rights Journal (2016) 21–40.

Ibid, 29; VR Krishna Iyer, Bhoposhima: Crime without Punishment (1991) 26:47 Economic and Political Weekly 2705.

On this major Supreme Court of India decision, see, for example, Justice Delayed, the Loss through Law: Union Carbide Corporation v. Union of India (1989), in, Zia Mody (ed) 10 Judgements That Changed India (Penguin Books India, India, 2013) 93–114.

Please see also the Order itself and the reasons listed by the Supreme Court to justify its decision in the name of urgency: “The basic consideration motivating the conclusion of the settlement was the compelling need for urgent relief. The suffering of the victims has been intense and unrelieved. Thousands of persons who pursued their own occupations for an humble and honest living have been rendered destitute by this ghastly disaster. Even after four years of litigation, basic questions of the fundamentals of the law as to liability of the Union Carbide Corporation and the quantum of damages are yet being debated. These, of course, are important issues, which need to be decided. But, when thousands of innocent citizens were in near destitute conditions, without adequate subsistence needs of food and medicine and with every coming morrow haunted by the spectre of death and continued agony, it would be heartless abstention, if the possibilities of immediate sources of relief were not explored. Considerations of excellence and niceties of legal principles were greatly over-shadowed by the pressing problems of very survival for a large number of victims”. Available at: http://www.legalserviceindia.com/issues/topic1401-union-carbide-corporation-vs-union-of-india-transfer-case.html.

See, BN Kirpal, Ashok H Desai, Gopal Subramaniam, Rajeev Dhavan & Raju Ramachandran (eds) Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (OUP India, India, 2001) 480.

See all the relevant legal documents available at: http://www.hcourt.gov.au/cases/case-s389/2011.

See, High Court of Australia, JT International SA v Commonwealth of Australia British American Tobacco Australasia Limited v The Commonwealth [2012] HCA 43, Order of 15 August 2012, Reasons of 5 October 2012, [193].

The BIT text is available at: http://www.austlii.edu.au/au/other/dfat/treaties/1993/30.html.

See, http://www.pcacases.com/web/view/5.

The text of the decision was indeed not yet available at the time this chapter was written but the above reasoning is based on the respondent arguments.

On the State’s autonomy to regulate in a WTO context post–US-Clove cigarette decision and in relation to the precise IP claims of this case, please see the clear and concise demonstration of Prof. Ernst Ulrich Petersmann, Methodology Problems in International Economic Law and Adjudication, EUI Working Papers, 2016/12, 25–31. See, also, Tsai-yu Lin, Inter-Mingling TRIPS Obligations with an FET Standard in Investor-State Arbitration: An Emerging Challenge for WTO Law? 50(1) Journal of World Trade (2016) 71–91.

See, http://dfat.gov.au/international-relations/international-organisations/wto/wto-dispute-settlement/Pages/wto-disputes-tobacco-plain-packaging.aspx.

See, https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds434_e.htm.

See, Philip Morris Brands Sàrl, Philip Morris Products SA and Abal Hermanos SA v Oriental Republic of Uruguay (“Philip Morris v Uruguay”), ICSID Case No ARB/10/7 and for the Amicus request, Philip Morris v Uruguay, Procedural Order No 4 (24 March 2015) [30].

In November 1993, a class action lawsuit naming 74 plaintiffs was filed against Texaco, Inc. in the US federal court of New York on behalf of the indigenous and settler residents who had allegedly been harmed by the multinational’s operations and massive pollution of the Amazon region. See, Aguinda v Texaco, Inc, No 93 Civ 7527 (SDNY, 3 November 1993) (Aguinda complaint). In December 1994, the plaintiff’s attorneys filed a related class action lawsuit on behalf of indigenous and settler residents of Peru who had also allegedly been harmed by Texaco’s operations resulting into trans-boundary pollution. See, Ashanga Jota v Texaco, Inc, No 94 Civ9266 (SDNY, 28 December 1994) (Ashanga Jota complaint). Understood as an additional contribution from the plaintiffs to discourage Texaco’s efforts to convince the US judge to dismiss the Aguinda case on the ground of forum non conveniens, the Ashanga Jota case stressed the legal impossibility for the Ecuadorian justice to take jurisdiction over damages that had occurred in Peru. Ashanta Jonta was hence litigated together with Aguinda but remained of a much less importance. For a very comprehensive account of the procedural developments of the cases put in the historical and political context of Texaco-Chevron’s presence in Ecuador, see generally, J Kimberling, Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, Chevron Texaco, and Aguinda v Texaco’ 38 JILP (2006) 413; J Kimberling, Transnational Operations, Bi-National Injustice: ChevronTexaco and Indigenous Huaorani and Kichwa in the Amazon Rainforest in Ecuador, 31 American Indian Law Review (2006–2007) 445. As mentioned by the author herself, Judith Kimberling has worked on a variety of issues at stake in the cases and served as legal counsel for different victims’ communities. She is the author of the now famous report Amazon Crude that played a pivotal role in publicizing the environmental scandal and gathering sufficient attention and support in favour of the initial US trial. See, J Kimberling, Amazon Crude (Natural Resources Defence Council (NRDC), 1991) and its Spanish version published in 1993 FCUNAE (Federation of Communas Union of Natives of the Ecuadorian Amazon) an Ecuadorian indigenous organization.

Chevron Copr v Yaiguaje, 2015 SCC 42 (SCC, 9 April 2015).

See, http://fortune.com/fortune500/chevron-3/ and http://fortune.com/global500/chevron-12/.

Op cit, 38.

The Oriente region covers 32 million acres in the Amazon basin and the concession area included 3.8 % of the Oriente.

See, the historical background provide by Texaco-Chevron, http://www.chevron.com/documents/pdf/texacopetroleumecuadorlawsuit.pdf.

See, A Acosta, La Maldición de la Abundancia (Ediciones Abya-Yala, 2009) <http://www.scribd.com/doc/32990118/Libro-Alberto-Acosta-Maldicion-Abundancia-2009>. Accessed 25 November 2015. See also, A Acosta, Breve historia económica del Ecuador, 6th edn (Corporación Editora Nacional, Quito, 2006).

The recent documentary Crude by Joe Berlinger has been at the centre of a violent controversy involving the plaintiffs’ attorney Steven Donziger. Crude indeed investigates the presence and operations of Texaco-Chevron in Ecuador based on many testimonies and scientific evidences produced by the different parties. Some clips shot during the making of the documentary contain ambiguous statements made by the plaintiffs’ attorney on Ecuadorian justice, corruption and the financial objectives of the litigation. In February 2011, Chevron Corporation filed a civil lawsuit under the Racketeer Influenced and Corrupt Organizations Act (RICO) as well as other federal and State laws against the trial lawyers and consultants leading the Ecuadorian case. Hence, it was seeking a court declaration on the unenforceability of Ecuadorian judgements against the company as well as damages associated with the cost of the Ecuadorian litigation, but this strategy did not prove successful. See generally, Crude, <http://www.crudethemovie.com>. Accessed 27 November 2015. Interestingly, but not surprisingly in this hyper tensed context with enormous amounts of money at stake, the plaintiffs have also been developing similar arguments against Chevron’s behaviour and its many attempts to bribe Ecuadorian judges and government. See, for example, Amazon Defence Coalition, Chevron $1 Billion Bribe Offer to Quash Legal Case Rocks Ecuador (2011) http://chevrontoxico.com/news-and-multimedia/2011/1223-chevrons-1-billion-bribe-offer-to-quash-legal-case-rocks-ecuador.html. Accessed 27 November 2015. See also, the Business and Human Rights Resource Centre Website and Case Summary for a General and Balance Approach of all Perspectives available at: http://business-humanrights.org/en/texacochevron-lawsuits-re-ecuador#c9332. Accessed 27 November 2015.

See all the relevant legal documents available at: http://www.italaw.com/cases/257.

See, http://www.italaw.com/sites/default/files/case-documents/italaw7104.pdf.

In June 2008, the UN Human Rights Council renewed his mandate for a 3-year term. See generally, the Business and Human Rights Resource Centre website and precisely the section dedicated to the work of Prof John Ruggie available at: http://www.business-humanrights.org/SpecialRepPortal/Home/Introduction.

The Members formally took up their roles on 1 November 2011. See, the Working Group pages on the Business and Human Rights Resource Centre: http://www.business-humanrights.org/Documents/UNWorkingGrouponbusinesshumanrights.

See, E/CN.4/RES/2005/69, available at: http://www.ohchr.org/EN/Issues/Business/Pages/ResolutionsDecisions.aspx.

See, A/HRC/8/5.

See, http://www.business-humanrights.org/SpecialRepPortal/Home/UNactionfollowingendofmandate, and the UN Guiding Principles available at: http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.

See, the Special Representative March 2011 Report, A/HRC/17/31.

See, for example, the third edition of the FIDH guide on accountability and redress mechanisms for victims of corporate abuses at http://business-humanrights.org/en/fidh-updates-guide-on-accountability-redress-mechanisms-for-victims-of-corporate-abuse.

See, for example, Exxon Mobil Human Rights Policy directly referring to the UN Guiding Principles and due diligence.

On Risk in FDI law and adjudication, see, Leïla Choukroune, Disasters and International Trade and Investment Law – The State’s Regulatory Autonomy between Risk Protection and Exception Justification, in, S Breau & KLH Samuel (eds) Research Handbook on Disasters and International Law (Edward Elgar, Cheltenham, forthcoming, 2016).

A/HRC/17/31, ibid, 20.

See, http://business-humanrights.org/en/un-guiding-principles/implementation-tools-examples/implementation-by-governments/by-type-of-initiative/national-action-plans.

See for instance, the “Joint Civil Society Statement to the 17th Session of the Human Rights Council” formulated by Amnesty International, ESCR-Net, The International Network for Economic, Social, and Cultural Rights, Human Rights Watch, International Commission of Jurists, FIDH, International Federation for Human Rights, RAID, Rights and Accountability in Development available at: http://www.hrw.org/en/news/2011/05/30/joint-civil-society-statement-17th-session-human-rights-council. On recent effort of treaty drafting, see, the Business and Human Rights Resources Centre updates available at: http://business-humanrights.org/en/binding-treaty/latest-news-on-proposed-binding-treaty.

The civil society and academic proposals on what to put in a treaty are particularly interesting, see, http://business-humanrights.org/en/call-for-comments-what-would-you-put-in-a-treaty-on-human-rights-business-open-until-31-may.

See Ecuador’s August 2013 initiative in favour of the adoption of a biding instrument available at: http://business-humanrights.org/en/binding-treaty/un-human-rights-council-sessions.

Timid discussions are now starting in the UNCTAD context with, for example, a recent Multi-year Experts Meeting on Investment, Innovation and Entrepreneurship for Productive Capacity-building and Sustainable Development to launch the IHRP Guide on Implementing the UNGPs in Investment Policymaking see, http://blogs.lse.ac.uk/investment-and-human-rights/2016/02/29/7197/.

In 1996, in the Doe v Unocal case, a group of Burmese people supported by international counsels and NGOs, filed a lawsuit against Unocal in US federal court alleging they had suffered human rights abuses such as forced labour, murder, rape and torture at the hands of the Burmese military during construction of a gas pipeline, and that Unocal was complicit in these abuses. For background information from the lead NGO, see http://www.earthrights.org/legal/doe-v-unocal.

See, Kadic v Karadzic (2nd Circuit, 1995). This case was brought by a Bosnian national against Radovan Karadzic. The US court of Appeals for the Second circuit held that under the ATCA, an US district court may exercise jurisdiction over a non-State actor accused of having committed genocide or war crimes in violation of the law of nations.

In the Khulumani case, a group of South African nationals represented by the Khulumani support group sued 20 banks and corporation in a US federal court based on the ATCA for complicit in violations of human rights (extrajudicial killings, torture and rape) during the apartheid period. The South African government first opposed to the lawsuit before it eventually supported it. For an overview of the major courts decisions in this case, see http://www.business-humanrights.org/Categories/Lawlawsuits/Lawsuitsregulatoryaction/LawsuitsSelectedcases/ApartheidreparationslawsuitsreSoAfrica.

See above.

In the Wiva v Royal Dutch Shell case, another leading ATCA case, Royal Dutch Shell has been sued in US federal court by Ken Wiwa (the son of the Ogoni people activist Ken Saro Wiwa executed in Nigeria in 1995) for complicity of severe human rights violations committed in the context of the oil extraction permitted by the Nigerian military government. In June 2009, the parties agreed to a settlement in the case for $15.5 million. But another case (Kiobel v Shell) was filed by the wife of Dr. Kiobel and Ogoni activist who was also executed. In this case, the plaintiffs allege that Shell through its subsidiary provided transport to Nigerian troops and other support to the Nigerian military and so was complicit with human rights violations under the ATCA. After several controversial procedural episodes, the plaintiffs petitioned the Supreme Court in June 2011 asking it to hear an appeal of the lower court’s ruling. This eventually led to the Supreme Court’s reframing of the ATCA possible invocation. See http://www.business-humanrights.org/Categories/Lawlawsuits/Lawsuitsregulatoryaction/LawsuitsSelectedcases/ShelllawsuitreNigeria.

See, Leïla Choukroune, Think Globally, Sue Globally: The Exxon Mobil Case in Indonesia, in, Michale Faure & Andri Wibisana (eds) Regulating Disaster, Climate Change and Environmental Harm (Edward Elgar, 2013), 56–80.

In August 2008, family relatives of 12 men killed in Iraq as well as surviving co-workers filed a lawsuit in US federal court against Kellog Bornw and Root (KBR), a US military contractor in Iraq, and its Jordanian sub-contractor, Daoud & Partners.

The claim brought under ATCA and American trafficking law was based on allegations of racketeering, human trafficking, forced labour and slavery and false imprisonment. According to the claimants, 13 men were recruited in Nepal to work in hotel and restaurants in Jordan, but upon arrival in Jordan their passports were confiscated and they were sent to Iraq to work for US military base. Twelve of them were killed by Iraqi insurgents en route while the 13th surviving worker was forced to work for 15 months in a warehouse under the supervision of KBR. See generally, http://www.businesshumanrights.org/Categories/Lawlawsuits/Lawsuitsregulatoryaction/LawsuitsSelectedcases/KBRlawsuitrehumantraffickinginIraq.

See, Judiciary Act of 1789 § 9, 1 Stat, 76–77.

Since the reactivation of the ATCA and its greater use to hold multinational corporations liable for human rights violations, the academic community—in the United States mostly—has produced a very large number of articles and other essays dealing with the legal intricacies and avenues offered by the 1789 text itself or commenting on the hopes and limits of particular decisions and cases. Amongst this very vast body of academic literature, the following recent articles are of particular interest: for a historical perspective, see, Anthony J Bellia Jr & Bradford R Clark, The Alien Tort Statute and the Law of Nations, 78(2) The University of Chicago Law Review (Spring 2011), and for a very insightful analysis of the “Kiobel” case, see, Odette Murrat, David Kinley & Chip Pitts, Exaggerated Rumours of the Death of an Alien Tort? Corporations, Human Rights and the Remarkable Case of Kiobel, 12(1) Melbourne Journal of International Law, (June 2011) 57–94.

This extremely controversial decision—and possibly intentionally ambiguous—has been at the core of a very lively debate amongst practitioners and academics who could see in the Sosa judgement what they were probably predisposed to see about the role of international customary law and its use by today’s US judiciary. For an interesting account of these debates, see, Curtis A Bradley, Jack L Goldsmith & David H Moore, Sosa, 120(4) Customary International Law, and the Continuing Relevance of Erie, Harvard Law Review (2007); Ernest A Young, Sosa and the Retail Incorporation of International Law, 120(4) Harvard Law Review Forum (2007).

See, Leïla Choukroune, Corporate Liability for Human Rights Abuses, The Hindu Business Line, 1 November 2012 <http://www.thehindubusinessline.com/opinion/corporate-liability-for-human-rights-abuses/article4054877.ece>; Leïla Choukroune, Shell v Kiobel, multinationales et droits de l’Homme devant la Cour suprême américaine, Le Monde Economie, 28 janvier 2013.

100

This has often taken the form of a real legal battle. The interests at stake being enormous, corporations have recently entered in a new nationalist campaign against the ATCA as proven by recent publications: See, Jonathan Drimmer, Think Globally, Sue Globally: Out of Court Tactics Employed by Plaintiffs, Their Lawyers and Their Advocates in Transnational Tort Cases, US Chamber Institute for Legal Research, 2011 <http://www.instituteforlegalreform.org/issues/research/368?page=2>.

101

See, Michael Goldhaber, The Current State of Alien Tort Litigation in the Business and Human Rights Context, The Global Lawyer, 13 May 2016 <http://business-humanrights.org/en/usa-the-current-state-of-alien-tort-litigation-in-the-business-human-rights-context>.

102

For a useful synthesis, see, FIDH, Corporate Accountability for Human Rights Abuses, op cit, 202–205.

103

For official presentations, see the EU available at: http://ec.europa.eu/trade/policy/in-focus/ceta/ and the US Trade Representative website dedicated pages available at: https://ustr.gov/tpp/#overall-us-benefits. The TTP countries are Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States and Vietnam.

104

For a synthesis of EU Parliament concerns and initiatives and positions, see its January 2016 available at: http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/573929/EPRS_BRI(2016)573929_EN.pdf.

105

See, the EU comments at the time available at: http://trade.ec.europa.eu/doclib/press/index.cfm?id=1468.

106

See our introduction above and generally the latest UNCTAD reports which show a surge in European countries related investment cases with countries like the Chez Republic or Ukraine topping the list of respondents. See, http://unctad.org/en/Pages/DIAE/World%20Investment%20Report/World_Investment_Report.aspx.

107

See, the EU arguments at: http://trade.ec.europa.eu/doclib/press/index.cfm?id=1468.

108

See the CETA treaty text at: http://trade.ec.europa.eu/doclib/docs/2016/february/tradoc_154329.pdf.

109

On the TPP negotiations, see, Leïla Choukroune, «Le Partenariat Transpacifique Precurseur de nouveaux traités commerciaux», Le Monde, 7 octobre 2015, «http://www.lemonde.fr/idees/article/2015/10/07/le-partenariat-transpacifique-precurseur-d-une-nouvelle-generation-de-mega-traites-commerciaux_4784436_3232.html».

110

See the TPP Chapter 25 available at: https://ustr.gov/sites/default/files/TPP-Final-Text-Regulatory-Coherence.pdf.

111

See the TPP Preamble available at: https://ustr.gov/sites/default/files/TPP-Final-Text-Preamble.pdf.

112

See The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding among UN Agencies <http://hrbaportal.org/the-human-rights-based-approach-to-development-cooperation-towards-a-common-understanding-among-un-agencies>.

The Common Understanding is described as follows:

“All programmes of development co-operation, policies and technical assistance should further the realization of human rights as laid down in the Universal Declaration of Human Rights and other international human rights instruments”.

Human rights standards contained in, and principles derived from, the Universal Declaration of Human Rights and other international human rights instruments guide all development cooperation and programming in all sectors and in all phases of the programming process.

Development cooperation contributes to the development of the capacities of ‘duty-bearers’ to meet their obligations and/or of ‘rights-holders’ to claim their rights.

113

See, Ernst-Ulrich Petersmann, Methodology Problems in International Economic Law and Adjudication, op cit; Ernst-Ulrich Petersmann, Constituting, Limiting, Regulating and Justifying Multilevel Governance of Interdependent Public Goods: Methodological Problems of International Economic Law Research, Global Community Yearbook of International Law and Jurisprudence (GCYILJ) 2012 (2013).

114

Numerous publications, including professional ones targeted towards a practitioners audience, are dealing with the better integration of human rights into IIAs, see, for example, the special issue of Transnational Dispute Management (TDM), Aligning Human Rights and Investment Protection at: https://www.transnational-dispute-management.com/journal-browse-issues-toc.asp?key=46; see also, Patrick Dumberry, Suggestions for Incorporating Human Rights Obligations into BITs, in, Kalvaljit Singh & Burghard Ilge (eds) Rethinking Bilateral Investment Treaties, Critical Issues and Policy Choices (Both Ends, Somo, 2016) 211–230.

Titel: Human Rights in International Investment Disputes
verfasst von: Leïla Choukroune
Verlag: Springer Singapore
Buch: Judging the State in International Trade and Investment Law
Print ISBN: 978-981-10-2358-3

Electronic ISBN: 978-981-10-2360-6

Copyright-Jahr: 2016
DOI: https://doi.org/10.1007/978-981-10-2360-6_9

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